74 FLRA No. 2                                                                     

 

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 25

(Union)

 

and

 

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS

VETERANS BENEFITS ADMINISTRATION

(Agency)

 

0-AR-5959

 

_____

 

DECISION

 

August 19, 2024

 

_____

 

Before the Authority:  Susan Tsui Grundmann, Chairman, and

Colleen Duffy Kiko and Anne Wagner, Members

 

I.          Statement of the Case

 

Arbitrator Keith D. Greenberg denied the Union’s grievance, finding the Agency had just cause to issue a letter of reprimand (the reprimand) to an employee (the grievant).  The Union filed exceptions on the ground that the Arbitrator exceeded his authority, and on grounds that the award fails to draw its essence from the parties’ collective‑bargaining agreement and is incomplete, ambiguous, or contradictory so as to make implementation impossible.  We deny these exceptions because the Union does not establish the award is deficient.

 

II.        Background and Arbitrator’s Award

 

The grievant reviews decisions concerning veteran‑benefit claims.  One of her duties is to “recertif[y]” cases for further review by the Agency.[1]  The Agency issued the grievant a reprimand in November 2022 because she failed to recertify an assigned case, despite being reminded by her supervisor and specifically committing to complete the assignment.  The Union grieved the reprimand.  The grievance proceeded to arbitration, where the parties stipulated the issues as “whether the Agency had just cause to issue the [g]rievant . . . a [l]etter of [r]eprimand for failure to follow instructions and, if not, to determine the appropriate remedy.”[2] 

 

Following a hearing in December 2023, the parties submitted closing briefs.  In its brief, the Union argued that, as an “[a]lternative [r]emedy to [d]ismissal of [the] [d]isciplinary [a]ction[],” the reprimand should be removed from the grievant’s personnel file under Article 14, Section 3 of the parties’ agreement (Section 3).[3]  This provision states that reprimands “may be removed from an employee’s files after a six[‑]month period” if the “employee requests removal” and “the purpose of the discipline has been served.”[4]  In support of its request, the Union asserted the grievant made “proactive work improvements” in the year after being disciplined and Agency witnesses found her to be “nonproblematic.”[5]

 

The Arbitrator found the Agency had just cause to discipline the grievant because “she failed to complete her assignment or to seek clarification” and “ultimately decided to ignore her supervisor’s instruction.”[6]  He further determined there was no basis to mitigate the discipline, and he denied the grievance “in its entirety.”[7]

 

On May 3, 2024, the Union filed exceptions to the award and, on June 3, 2024, the Agency filed an opposition to the exceptions.

 

III.       Preliminary Matter:  Sections 2425.4(c) and 2429.5 of the Authority’s Regulations do not bar the Union’s essence exception.

 

Under §§ 2425.4(c) and 2429.5 of the Authority’s Regulations, the Authority will not consider any arguments that could have been, but were not, presented to the arbitrator.[8]  The Union argues the award fails to draw its essence from the parties’ agreement because the Arbitrator “failed to appropriately apply”[9] and “ignor[ed]” Section 3.[10]  The Agency asserts the Authority should dismiss this exception because the Union did not address or raise the Arbitrator’s interpretation of Section 3 at arbitration.[11]  However, the Agency concedes the Union requested, during arbitration, the alternative remedy of removing the reprimand from the grievant’s file, as allowed by Section 3.[12]  Because the Union raised Section 3 to the Arbitrator, we find the Union’s essence exception is not barred.[13] 

 

IV.       Analysis and Conclusion:  The Union does not establish the award is deficient.

 

The Union argues that (1) the Arbitrator exceeded his authority, (2) the award fails to draw its essence from the parties’ agreement, and (3) the award is incomplete, ambiguous, or contradictory so as to make implementation impossible.[14]  Each of these exceptions is premised on the argument that the Arbitrator should have addressed and awarded the “alternative remedy” under Section 3.[15] 

 

First, the Union argues the Arbitrator exceeded his authority because he did not address the Agency’s compliance with Section 3.[16]  As relevant here, arbitrators exceed their authority when they fail to resolve an issue submitted to arbitration.[17]  Arbitrators do not exceed their authority by failing to address an argument that the parties did not include in their stipulation.[18]  In determining whether an arbitrator has exceeded his or her authority, the Authority accords an arbitrator’s interpretation of a stipulated issue the same substantial deference that it accords an arbitrator’s interpretation and application of a collective-bargaining agreement.[19]

 

Here, the parties stipulated the issues as whether the Agency had just cause to reprimand the grievant “and, if not, to determine the appropriate remedy.”[20]  As these issues did not specifically include a question concerning the Agency’s compliance with Section 3, the Arbitrator did not exceed his authority by failing to address that issue.[21]  Moreover, to the extent the Union argues the Arbitrator exceeded his authority by not addressing whether the Agency was required to rescind the reprimand from the grievant’s file, as allowed by Section 3, as a remedy to the grievance, we similarly reject this argument.[22]  In resolving the stipulated issues, the Arbitrator found the Agency had just cause to reprimand the grievant, and he denied the grievance “in its entirety.”[23]  Therefore, based on the stipulated issue, he had no obligation to consider any remedy.[24]  We deny this exception.[25] 

 

The Union also asserts the award fails to draw its essence from the parties’ agreement because the Arbitrator “ignor[ed]” the provision in Section 3 allowing for reprimands to be removed “after six months.”[26]  However, as discussed above, the Arbitrator was not required to interpret or apply Section 3 to resolve the issues as framed in the parties’ stipulation.  Accordingly, the Union has not demonstrated that the Arbitrator’s failure to address Section 3 fails to draw its essence from the parties’ agreement.[27]

 

Finally, the Union argues that the award is incomplete, ambiguous, or contradictory so as to make implementation of the award impossible.[28]  In order to prevail on this ground, the appealing party must demonstrate that the award is impossible to implement because the meaning and effect of the award are too unclear or uncertain.[29]  According to the Union, the award lacked “clarity” because it “ignor[ed]” Section 3’s “timelines and conditions of [discipline] reassessment specified in [Section 3].”[30]  As the Arbitrator was not required to address Section 3, the award is not incomplete.  Moreover, the Union provides no explanation as to how the award, which denied the grievance and awarded no remedies, is impossible to implement.[31]  We therefore deny this exception.[32]

 

V.        Decision

 

We deny the Union’s exceptions.

 

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